that the limitation went beyond the rules of law, and could not take place as an executory devise. The Common Pleas held the estate not to be void, but vested in the second son, to preserve the general intent; and that he took to him and his heirs, determinable on their accession to the paternal estate. The questions in this case require more consideration; I can only retain the bill, and permit the parties to bring ejectments.

But it appearing the legal estate was in the trustees, his Lordship ordered a case, for the opinion of the court of King's Bench. (Reg. Lib. 1785, B. fol. 752.) (See the report of the arguments, &c., 2 T. R. 241. And see it on the equity reserved, 2 Bro. C. C. 344. The 3d edition refers for some material cases on Powers to Bristow v. Warde, Wilson v. Piggott, Routledge v. Dorril, and Whistler v. Webster, 2 Ves. jun. p. 336 to 372.

(1) Lady Burlington devised to the late Duke of Devonshire for life, and after his decease, to the use of his children for such estates, and in such shares and proportions, and subject to such powers, provisions, conditions, restrictions, and limitations, as he, by deed or will should appoint; he by will devised the premises to the younger sons in strict settlement; held a good execution of the power. (The case is reported fully 7 T. R. 741, note. See it much commented on by Mr. Sugden, in his work on Powers, p. 412.)

(2) Mallison v. Andrews. Power to a feme covert to dispose by deed or will of £1300 to such of her children, in such manner and form, and to such uses and purposes as she should appoint. She gave £400 to R. absolutely, £400 to E. at twenty-one, and £500 to P. that is, the interest and dividends to P. for life, and after her decease the principal to be divided among her children.-Under the very full words of this power, the appointment was held to be well made. Chanc. Hil. 1782. (Mr. Sugden observes this note is erroneous; and states that most of the cases in Mr. Brown's notes are misreported. Sugd. on Pow. p. 418.)

BATTELEY against WINDLE. [28 January 1786.]

Appointing an executor trustee, shall not take from him the residue. (S. P. Pratt v. Sladden, 14 Ves. 193, 199. Quod vide. Sir W. Grant, M. R., observes there, that the result in the principal case above is correct, although it is rather imperfectly stated.)

The testator, by his will desired his brother would be executor and trustee for his sister Batteley, and her children, and gave him no legacy.(1)

The question was, whether he should take the residue; Mr. Scott contending that by this will he was a mere trustee, and not entitled to the residue as an executor.

Lord Chancellor [Thurlow]. The question is, whether the word trustee shall alter the sense of the word executor? I think it must be taken reddendo singula singulis, and that he is a trustee only as to the trust-fund, and in other respects an executor. His Lordship therefore decreed him the residue. (Reg. Lib. 1785, A. fol. 270 b.)

66

66

(1) The will (as in Reg Lib.) was as follows:-" First, I desire my debts and funeral expences may be paid as soon as can be; and then all my money in the funds I would "remain and increase the interest to the principal so long as my brother Charles B. 'shall live, and, after his death, then I would give the interest from that time arising to my sister Batteley, to bring up and provide for herself and children; and at her "death be parted amongst them equally, share alike: All my furniture I would have sent to my brother Charles B. And I do desire my brother Richard Windle to be my executor and trustee to and for my sister Batteley and her children." Reg. Lib.

66

66

It appears from Reg Lib. that the defendant did not make the point by his answer; on the contrary, he submitted to account, and to transfer the balance in his hands as the Court should direct. His counsel, however (as it seems), suggesting the point in his favour at the hearing, the Court declared him entitled to the residue of the testator's personal estate not specifically bequeathed. Reg. Lib.

[32] FORD against COMPTON. [7, 10, 13, and 22 February, 1786.]

An original letter stamped, after production, to make it evidence. (See Hearne v. James, 2 Bro. C. C. 309.) [Specific performance of agreement decreed upon an offer by letter, which was forthwith accepted by another letter in reply.(1)]

In a cause for specific performance of an agreement for a lease of an house, the bill called upon Dr. Compton to produce the original agreement, which was by letter from him, and an affirmative reply on the part of the plaintiff, and they gave him notice to produce the letter in reply, in order to read it at the hearing: and, to provide for his not producing it, they got a copy, which was in their own possession, stamped, in order to read that. At the hearing, Dr. Compton produced the original letter.

Mr. Scott, for the defendant, objected, that the copy could not be read, because the original was in court; and that the original letter could not be read, because it was not stamped; and he contended it could not now be stamped, because the twenty-one days limited by the act of parliament were expired.

Mr. Mansfield, for the plaintiff, said, the Court of Exchequer had determined, that, upon payment of the penalty, the instrument might be stamped, although the time was expired. If Dr. Compton had destroyed the original, this stamped copy would have been good evidence. The legislature, in forming the stamp acts, did not mean to alter the rule of evidence.

The plaintiff desired the cause might stand over to get the original stamped.

Lord Chancellor [Thurlow] observed, that, if a stamped original was lost, it would be difficult to get a copy stamped.

But the cause stood over, and they got the original stamped, and produced it in evidence the next day. (Reg. Lib. 1785, A. fol. 204 b.)

(1) The letter of the defendant offered the plaintiff a lease upon certain terms, and insisted on a reply by return of the post. The plaintiff notified his acceptance of those terms forthwith accordingly. The defendant afterwards granted a regular lease of the premises to another person, who was a party to the suit. The Court decreed the material defendant specifically to perform his agreement for a lease to the plaintiff, with costs to be paid by him; and it set aside the other lease, which he had so granted in fraud of his contract. Reg. Lib.

[33] DOYLEY against The Countess of PowIS.

[S. C. 1 Cox, 206, quod vide.A deposit made on opening a bidding having been laid out in the public funds, this deposit is considered as part of the purchase money paid, and therefore the depositor is not entitled to the dividends accruing between the time of the deposit and the completion of the purchase; but only to interest on the deposit at 4 per cent. (See Poole v. Rudd, 3 Bro. C. C. 49. And see in Smith v. Jackson, 1 Madd. Rep. 621, and the Report 1 Cox, 206.)

A sum of £2000 was deposited, by Lord Beauchamp, upon an opening of a bidding, upon the sale of an estate in this cause, and had been by order laid out in the funds. The [33] stocks rising, Lord Beauchamp, who is ordered to complete his purchase, claims the advantage of the rise in the payment of his purchase money, the money paid in being only a pledge.

But Lord Chancellor said, the difference was where money was a mere pledge, and where it was part of the purchase-money, which it was here; and if there had been a loss, the purchaser could not have been called upon to pay more than his purchasemoney. When the money is paid in, it becomes part of the purchase-money.

A similar order had been made in the case of Ambrose v. Ambrose, on the 5th of December last. (Reg. Lib. 1785, A. fol. 172.) (And see also Poole v. Rudd, 3 Bro. C. C. 49, and 1 Madd. Rep. 621.)

GLOVER against STROTHOFF. Lincoln's Inn Hall, 28th Feb. [1786]. Question whether an interest in a heritable bond charged upon lands in Scotland, will pass by will; referred to the Master to report the law of Scotland. A bequest that £4000 and a further sum of £1500 shall pertain to J. P. after the death of R. G. without lawful issue is too remote, and the whole shall vest in R. G. (See Lord Loughborough's approbation of this case in Chandless v. Price, 3 Ves. 101. Upon the points, see Attorney General v. Hird, and Rigge v. Bensley, 1 Bro. C. C. 170, 187, &c., with the various references, especially to Kirkpatrick v. Same, 13 Ves. 476, &c., Barlow v. Salter, 17 Ves. 479, &c., and Elton v. Eason, 19 Ves. 73, &c.)

66

66

66

66

66

66

66

66

Mary Burgess seised and possessed a considerable real estate, consisting of several sums of money secured on heritable bonds, according to the laws of Scotland, and a considerable personal estate, did make her last will and testament in writing, duly executed and attested for passing real estates of inheritance, to the effect following: Know all men by these presents, I, Mrs. Mary Burgess, of Bulls Cross, in the county "of Middlesex, widow, being perfectly satisfied of the friendship, fidelity, and fitness of the persons after mentioned, for executing the following trusts, do, by these presents, assign, convey, and dispose to and in favour of Richard Glover, of James Street, Westminster, my brother (since deceased and other trustees), and to the survivors or survivor of them, and to the heirs of the last survivor; but in trust always for the uses "and purposes after mentioned, all and whatsoever lands, heritages, debts, sums of money, government stock, and all other real and personal estate and effects, household-furniture, jewels, plate, watch, china, and others whatsoever, pertaining to me, or that shall be resting, owing, or pertaining to me at the time of my death; and "particularly, and without prejudice to the aforesaid generality, the sum of £6000 sterling, "being part of the sum of £25,000 contained in an heritable bond and disposition upon the estate of Kilhead in Scotland, by Alexander Macknochie in Edinburgh, to "[34] the said Richard Glover, Joseph Banks of Lincoln's Inn, and Archibald Douglas "of Douglas, Esquires; to which bond, to the extent of the said £6000 contained, I have a right by declaration of trust from the said Richard Glover, Joseph Banks, and "Archibald Douglas, and also the sum contained in an heritable bond and disposition "by James Robertson, Esquire, of Earnock, to the said Christopher Strothoff, Thomas "Lewis, and Richard Heaton, secured upon his estate at Earnock: to which bond, and Isums of money therein contained, I have a right by declaration of trust from the said Christopher Strothoff, Thomas Lewis, and Richard Heaton, with full power to my "said trustees, immediately after my death, to enter into possession of my whole real and personal means and estate and effects, and to apply the same, and the prices thereof, "to the ends, uses, and purposes following, viz. in the first place, for the payment of all my just and lawful debts, and funeral expences." She here gave some specific legacies and annuities. (Note: Mr. Cox's note contains the following addition :- And amongst others she gave to Mary Williams £50, and in the event of her death before me, to make payment to John Henry Williams, her son, of the sum of £30, and the sum of £500 to Henry Williams, the son of the said John Henry Williams, and my godson.' "Mrs. Williams survived the testatrix, but the £500 was given up as clearly belonging "to Henry Williams. She then proceeded thus: ") "And further, I hereby appoint my said trustees to lay out at interest, upon real and personal security, as they shall think proper, the sum of £4000 sterling, part of my said real and personal estate, and to make payment of the interest of the said sum of £4000 only, to Richard Glover, the younger son of the said Richard Glover, during all the days of his natural life, and to make payment of the principal sum, itself, to the heirs to be lawfully procreate of his "body; but declaring that the above interest shall not be affectable by the debts or deeds of the said Richard Glover: and, in the event of his death, without lawful issue of his body, or of his selling, assigning away, or otherwise disposing of, the above interest, or any part of it, my will is, that the said sum of £4000 together with £1500 sterling "further, making in all the sum of £5500 sterling, shall pertain and belong to the Reverend John Henry Williams, vicar of Wellsbourne. And, further, I hereby appoint, that the sum of £12,000 sterling, contained in the two heritable bonds above mentioned, on the estates of Kilhead and Earnock, do continue with my said trustees, "for the uses and purposes following, viz. one-third part of the interest of the said sums

66

66

66

66

6

"to be paid to the said Richard Glover, of James Street, Westminster, my brother, and "the remaining two-thirds to my said sister Elizabeth Strothoff, during their joint lives, and the whole of the said interest to the survivor of them during the natural life of the "said survivor; and, after the death of the last liver of my said brother and sister, [35] I appoint the whole of the said interest to be paid to the said Richard Glover, my nephew, during all the days of his natural life, and the said principal sum of £12,000 itself, thereafter to pertain and belong to the heirs of the body of the said Richard Glover, declaring, at the same time, that no part of the above interest shall be affectable "by the debts or deeds of the said Richard Glover the younger; and, in the event of “his selling, assigning away, or disposing of the above interest, or any part of it, my "will is, that the sums of money above mentioned, principal and interest, shall immedi“ately thereafter fall to the next heir, in the same manner as if the said Richard Glover "was naturally dead; and, in the event of his the said Richard Glover's death, without heirs of his body, I hereby appoint £6000 part of the said sum of £12,000 to pertain and belong to John Plumtree, Esquire, junior, of Jermyn Street, and the like sum “of £6000 to pertain and belong to Mary Plumtree, daughter of John Plumtree, Esquire, of Jermyn Street, and their heirs for ever. I hereby appoint the whole remainder of my fortune and estate subject to the payment of the said annuities, to be paid to the said Mrs. Elizabeth Strothoff, my sister, to be disposed of by her as she shall think proper, "notwithstanding her said coverture and my mind and will is, that the same shall "not be subject or liable to the controul, debts, or engagements of her present, or any "after-taken husband." Mary Burgess, some time afterwards, made a codicil to her will, not executed in the presence of witnesses, and which contains the following clause: "I revoke that part of my will, wherein I have left my brother Richard Glover "one-third part of the interest of the heritable bonds upon the estates of Kilhead and * Earnock, and leave only a sixth part of the interest to him."

Three questions arose upon the construction of this will. 1. Whether the remainder over of the £4000 and the legacy of £1500 after the death of Richard Glover, without issue of his body, were not too remote. 2. Whether, according to the law of Scotland, the heritable bonds could pass by this bequest. 3. Suppose the bequest to be legal, whether the remainder over to the Plumtrees was not too remote.

Mr. Mansfield, Mr. Caldecott, and Mr. Stratford (in support of the limitation), argued, That it was good, from the manifest intention of the testatrix, that it should take place upon the [36] event of Glover's dying without leaving lawful issue; that, wherever this was pointed out by the devise, it was good; and slight circumstances had been relied upon, as sufficiently marking that intention: for this purpose they cited Keily v. Fowler, 6 Bro. Parlt. Cases, 309. Higgins v. Dowler, 1 Wms. 98. Stanley v. Leigh, 2 Wms. 686. Butterfield v. Butterfield, 1 Ves. 133. (See the statement in Butterfield v. Butterfield, rectified in Supplement to Vesey, sen. p. 81.) Daw v. Pitt, Fearne, 347. With respect to the £1500 they insisted that was a legacy in prasenti, merely coupled with the reversionary interest, and was not to wait till that time. Mr. Solicitor General (for Richard Glover, the heir at law, and to whom the testatrix had devised the interest of the £4000 and the £12,000 the heritable bonds). As to the £4000, he insisted it was an estate-tail in money, executed in Richard Glover, the first taker, Butterfield v. Butterfield, Daw v. Pitt. That the case was too strong to admit of circumstances of the intent of the testatrix to contradict it. As to the £12,000 no doubt the will was executed according to the statute of frauds; but, by the law of Scotland, which must operate upon this occasion, an heritable bond is real estate, and not deviseable; feoffment is to be given, or may be demanded at a day certain. Livery is demanded by the obligee; and the words of the bond are not to the obligee, his executors, administrators, and assigns, but to his heirs and assigns. In such a case it becomes real estate, and descendible to the heir, unless properly disposed of inter vivos. (Note: There is an alteration in the text here from the notes of Mr. Cox.) [It is true the bond is on a trust; but the] declaration of trust does not operate as a real assignment; the declaration is only to [the obligee, her] heirs and assigns; the parties. are nothing more than trustees for the heir. This declaration of trust is merely for a part of it, the sum being £25,000 and the land is bound by adjudication, Willock v. Ouchterlony, in the House of Peers, 1772, No. 18, there a merchant of London, concerned in property of this nature, had procured a declaration of trust inter vivos, reserving to himself a power of revoking the trust, which he did afterwards by will, and bequeathed this property to certain parties. This was a scheme [37] to get rid of the lex loci, and

it was contended, the property passed quasi uno flatu, that the deeds and the will operated as one instrument. But it was answered, and affirmed by the decree of the House, that it could not pass, unless it had been disposed of inter vivos by the proper deed of disposition, according to the laws of Scotland. This being the case, he submitted that an enquiry before the Master as to the lex loci ought to be directed: to which the Chancellor consented, and referred it to the Master to enquire, whether, by the law of Scotland, the £12,000 so secured is considered as heritable, and descendible to the heir, or whether a sufficient disposal has been made of this property by the will of the testatrix.

Mr. Madocks (for the residuary legatee Mrs. Strothoff, and who is interested in the remainder of the interest of the £12,000 heritable bonds,) cited Lord Annandale's case, 2 Vesey, 381, where £30,000 were secured upon Scotch lands by act of parliament, instead of English lands, and Thorne v. Watkins, 2 Vesey, 35, to shew, that notwithstanding it was real by the law of Scotland, yet, by our law, it was merely personalty.

Lord Chancellor [Thurlow]. With respect to the £4000 personalty, the cases of Butterfield v. Butterfield [1 Ves. sen. 133], and Daw v. Pitt [Fearne, 347], have confirmed the doctrine upon that subject, that it is too late now to argue upon the distinction of principal and interest, or to insist upon circumstances of the intent. The rule must take place. With respect to the £1500 I am afraid Richard Glover must also take that. However clear the intent of the testatrix might be, she has expressed it in very awkward and unapt terms, and I cannot make her will for her.

His Lordship therefore decreed the remainders over too remote; and the question concerning the law of Scotland relative to the heritable bonds stood over till after the Master should have made his report.

[38] PETER PIERSON, Esq. Residuary Legatee of JOHN GARNET, D.D. late Bishop of CLOGHER, in the Kingdom of IRELAND, and one of his Executors, Plaintiff; RACHAEL GARNET, Spinster, only Sister and Heir at Law of the said JOHN GARNET and Others, Annuitants, under the Will of the said JOHN GARNET, and several Descendants of ANNE Coppinger, Defendants. [10 February and 6 March 1786.]

66

[See Wright v. Atkyns, 1823, 1 Turn. & R. 162.]

Vide S. C. Finch, Prec. Chanc. 201, &c.-Words of desire will raise a trust where the property and object are certain. (1) Legacies, no fund being described, to be paid in the currency of the country where the will is made.(2) The description of children of A. does not extend to a child in ventre se mere. (See also Cooper v. Forbes, 2 Bro. C. C. 63.) A daughter, though eldest, held a younger child to take a legacy by description.

John Garnet, late Lord Bishop of Clogher, by his will dated 12th October 1780, gave his personal property to Samuel Salt, Esq. in trust, to pay to several of the defendants, annuities stipulated in his said will, and went on as follows: "And, subject to the said annuities, it is my will, that the said Samuel Salt, his executors, administrators, " and assigns, shall and do pay, or permit and suffer, my kinsman Peter Pierson, of the " Inner Temple, London, Esq. to receive the whole of the residue of the proceeds, interest, "and profit of the said fund, so to be placed out at interest, after the payment of the said annuities, for and during the term of his natural life, with the full benefit of the “said annuities, if they, or any of them, shall cease during his life; and, from and after the death of the said annuitants, I bequeath the said residue to the said Peter Pierson, "his executors, administrators, and assigns and it is my dying request to the said Peter Pierson, that, if he shall die without leaving issue, living at his death, that the "said Peter Pierson do dispose of what fortune he shall receive under this my will, to and among the descendants of my late aunt Anne Coppinger, his grandmother, in such manner and proportion as he shall think proper."

66

The principal question was, whether the terms used in the recited clause were recommendatory only, or imperative, and raised a trust for the descendants of Anne Coppinger.

There were three accessary questions.

[39] 2. Several legacies being expressly to be paid in Sterling, or English money, and others indeterminate as to the fund, and the will made in Ireland, whether these legacies should be paid in Sterling money, or Irish currency.